MEDIA RESOURCES

NEWS IN CONTEXT

Supreme Court Upholds Federal Abortion Ban; Opens Door for Further Restrictions by States

April 20, 2007

In a reversal of longstanding precedent, the U.S. Supreme Court on April 18 upheld the federal Partial-Birth Abortion Ban Act, even though the law lacks an exception to protect the health of the pregnant woman. The law, enacted in 2003, was blocked from taking effect by three separate federal district court rulings (each of which was upheld by a federal appeals court) that it was unconstitutional. Supreme Court decisions over the past three decades had made it clear that all laws regulating access to abortion were required to include a health exception, both to protect a woman from being forced to carry to term a pregnancy that threatens her health and to prevent government from regulating abortion in such a way that forces women from a safer procedure to a riskier one. The Court’s 5–4 decision—its first ruling in an abortion case since Justice Sandra Day O’Connor was replaced by Samuel Alito—essentially overturned that precedent.

In the short term, the federal abortion ban will likely have only a modest impact on abortion service provision nationally. Although the law’s opponents had argued that it was so vaguely written that it could be interpreted to ban the most common abortion procedure performed throughout the second trimester (dilation and evacuation, or D&E), Justice Anthony Kennedy, writing for the majority, clearly identifies the intact dilation and evacuation, or D&X, procedure as the only one that is prohibited. Based on its last census of abortion providers in 2000, the Guttmacher Institute estimated that just 2,200 D&X procedures, or 0.17% of all abortions, were performed in that year; virtually all of these procedures were performed in the late second trimester. Today in the United States, nearly 90% of abortions are performed in the first trimester (before 12 weeks’ gestation). That said, there could be serious implications for individual abortion providers as they seek to determine how best to serve individual patients. In those cases where a physician determines that D&X would be the safest and most medically appropriate procedure for a particular woman, he or she technically would be able under the Court’s new precedent to seek an exemption on a case-by-case basis; the practicality of that option, however, is doubtful at best.

Moreover, the longer-term implications of Supreme Court’s decision to uphold the ban are extremely ominous. The ruling opens the door for states to further restrict abortion, with an understanding that the courts will now allow legislation that does not include a health exception. And the willingness of the newly constituted Court to depart so dramatically from earlier precedent is seen as a further indication of the fragility of Roe v. Wade itself.